TERMS AND CONDITIONS
- GRANT OF LICENSE, SERVICES AND SUPPORT
1.1. Intellectual Property License. NotaryCam hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to the Intellectual Property in the field of the Services for the Term of this Agreement only as defined in Section 1. “Intellectual Property” means the technology that facilitates the electronic signing of documents, including (i) patents, patent applications and patent rights; (ii) trademarks, rights associated with works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications and mask work registrations; (iii) any right relating to the existence or protection of trade secrets and confidential information; (iv) design, implementation, schema structure software code and know-how related to system architecture and conceptual engineering; (v) any right analogous to those set forth above and any other proprietary rights relating to intangible property; (vi) divisions, continuations, renewals, reissues and extensions of the foregoing now existing, hereafter filed, issued, created or acquired; and (vii) any goodwill associated with the foregoing items (i) through (vi), worldwide.
1.2. Grant of Rights by Customer and Customer’s Notaries. If Customer uses its own Notaries (“Customer Notaries”), Customer and Customer’s Notaries grant NotaryCam the right to use, copy, reformat, index, modify, display, reproduce and distribute in any manner or medium now known or hereafter existing, the Session that the Customer and Customer’s Notaries have for any legitimate business purpose associated with the Session. No compensation will be paid with respect to NotaryCam’s use of the Session. Customer and Customer’s Notaries further grant NotaryCam the right to store, maintain and provide access to the Session as provided by law, and to display such information to government officials who have a right to see such information, and to other authorized persons or entities as provided by applicable law. No compensation will be paid with respect to NotaryCam’s use of the Session. The parties acknowledge and agree that Customer and Customer’s notaries may conduct electronic notarial acts without conducting an audio or visual recording of the transaction or the notarial acts unless such is required by law.
Should Customer request a copy of the Session, Customer will only use the Session for a legitimate business purpose and represents and warrants and is solely liable for take all necessary steps to protect any Personal Information in the Session. A “Session” refers to the audio and video recording of an image, likeness and voice, along with connection information, device information and session information, and also Customer’s Notary’s personal data and identity credentials (including any photos thereon) of any session and notarial transaction information in the notary’s journal and Personal Information. “Personal Information” means information that (i) is protected under applicable law governing the disclosure, transfer or use of information concerning natural persons, including without limitation the Gramm Leach Bliley Act and its implementing regulations; and (ii) identifies the natural person at issue, including (as determined by applicable law) through such person’s name combined with other information such as the person’s telephone number, postal address, biometric record, driver’s license number, social security number or account number. Notwithstanding anything in this Agreement, Customer will indemnify, defend and hold harmless Company and all of its direct and indirect officers, directors, employees, agents, successors and assigns (each, an “Indemnified Person”) from any and all third party claims, demands, actions or threat of action (whether in law, equity or in an alternative proceeding), losses, liabilities, damages (including taxes), and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties (collectively, “Losses”), and threatened Losses due to, arising from or relating to any use of the Session by Customer or its vendors, agents, suppliers, employees, consultants, referred parties, and the like.
1.3. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer remote online or in person electronic notary services (the “Services”).
1.4. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
- RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data directly related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies found at notarycam.com and all applicable laws and regulations.
2.3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.4. Customer shall be required to provide a point of contact, including contact information, to the Company to any vendor, agent, consultant, or the like that uses the Services prior to any closing.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Confidential Information. The Parties acknowledge that either Party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation documents, information, reports, financial or other data, records, forms, tools, products, services, methodologies, present and future research, knowhow, technology, techniques, and/or business plans (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing Party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing Party; (ii) becomes public knowledge or known to the receiving Party after disclosure by the disclosing Party other than by breach of the receiving Party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving Party prior to disclosure by the disclosing Party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving Party.
3.2. Non-Use and Non-Disclosure of Confidential Information. As a condition to the receipt of the Confidential Information from the disclosing Party, the receiving Party promises to hold all Confidential Information of the disclosing Party in trust and confidence, and protect it as the receiving Party would protect its own Confidential Information (which, in any event, will not be less than commercially reasonable protection) and will not use such Confidential Information for any purpose other than as contemplated by this Agreement. Unless agreed to in advance by the disclosing Party in writing, the receiving Party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing Party’s Confidential Information; (ii) not use the disclosing Party’s Confidential Information in any fashion except to perform its duties hereunder without the disclosing Party’s express prior written consent; (iii) disclose the disclosing Party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving Party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving Party shall promptly notify the disclosing Party of any unauthorized disclosure or use of the Confidential Information. The receiving Party shall cooperate and assist the disclosing Party in preventing or remedying any such unauthorized use or disclosure.
3.3. Confidentiality of Agreement. Each Party agrees that the terms and conditions of this Agreement will be treated as Confidential Information; provided that each Party may disclose the terms and conditions of this Agreement (subject to nondisclosure requirements at least as restrictive as those set forth in the preceding section): (i) to legal counsel, (ii) in confidence to accountants, banks, and financing sources, and (iii) as required to comply with applicable law (e.g. court orders) provided that the receiving Party gives the disclosing Party prior written notice sufficient to allow the disclosing Party to seek a protective order or other appropriate remedy, discloses only such information as is required by the governmental entity, and uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed. Company may use Customer’s name on its website and in its promotional materials as a Customer of the Services but will not imply that the parties are affiliated.
3.4. Non-Circumvention/Non-Solicitation. During the term of this Agreement and at any time thereafter, the Parties agree not to utilize in any way the Confidential Information exchanged hereunder for the purpose of circumventing the other in connection with any opportunity contemplated hereunder and in connection with the business that is conducted as a result of this Agreement. The Parties shall also refrain from taking any other action to circumvent the other Party in connection with any opportunity contemplated hereunder and in connection with the business that is conducted as a result of this Agreement for a period of five (5) years following the termination of this Agreement for any reason. The Parties agree that the terms of the aforesaid covenant are commercially reasonable and necessary under the circumstances. Notwithstanding anything in this Agreement, if information about a person, entity, industry, or general know-how (“Prior Knowledge”) was known to a Party prior to this Agreement, this Section shall be void as to that Prior Knowledge. Customer for his/her officers, their officers, directors, agents, associates and any related parties will not interfere with, solicit or try to entice away from Company, a person he knows was an employee, consultant, agent, manufacturer, contractor, a client or customer of Company without the prior written consent of Company for a period of two (2) years following the termination of this Agreement for any reason.
3.5. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, know-how or other technology developed in connection with Services, Software or support, and (c) all Intellectual Property rights related to any of the foregoing.
3.6. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning customer data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- PAYMENT OF FEES
4.1. Customer shall pay Company in accordance with Exhibit A of this Agreement. Company reserves the right to change the Fees or applicable charges and to institute new charges upon thirty (30) days prior notice to Customer (which may be sent by email). Customer shall be solely responsible for all amounts owed to Company not paid to Company net 30 days.
- TERM AND TERMINATION
5.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term of one (1) year and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least ninety (90) days prior to the end of the then-current term.
5.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5.3. This Agreement shall also immediately terminate if either Party (A) files a voluntary petition in bankruptcy or files a petition seeking or acquiescing in any relief for itself under any present or future federal, state or other statute or law relating to bankruptcy, insolvency, or other relief for debtors; or (B) seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of all or any part of its property; or (C) admits in writing its inability to pay its debts generally as they become due; or (D) is dissolved or otherwise ceases to engage in its normal business operations and is unable thereby to fulfill its obligations under this Agreement.
- WARRANTY AND DISCLAIMER/FORCE MAJEURE
6.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.2. The failure of either party hereto to perform its respective obligations under this Agreement shall not be deemed a breach of this agreement to the extent that such performance is delayed or prevented in whole or in part by acts of God, fire, floods, storms, explosions, accidents, pandemics, epidemics, war, civil disorder, national emergency or other labor difficulties (including a strike, lockout or other work stoppage), or any law, rule, regulation, order or other action adopted or taken by any federal, state or local government authority or any other cause not reasonably within such party’s control, whether or not specifically mentioned herein, such an event being known as an event of “Force Majeure”. The party whose performance is impeded by an event of Force Majeure shall provide prompt written notice of the Force Majeure condition to the other party as soon as it is practicable to do so and further, such party shall use commercially reasonable efforts to cure such Force Majeure condition and perform its obligations hereunder as quickly as commercially possible. Pandemic means an epidemic disease that is occurring throughout a very wide area, usually several countries or continents, and usually affecting a large proportion of the population. Either Party after 60 days from the date in which the written notice is received by the other Party that describes the details of event, including particulars of the actual event, and if applicable, estimated continuing effects of such force majeure on the obligations of the party may terminate this Agreement with no penalties or damages.
- INDEMNITY/LIMITATION OF LIABILITY
7.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. Customer will indemnify, defend and hold harmless Company and all of its direct and indirect officers, directors, employees, consultants, contractors, agents, successors and assigns (each, an “Indemnified Person”) from any and all third party claims, demands, actions or threat of action (whether in law, equity or in an alternative proceeding), losses, liabilities, damages (including taxes), and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties (collectively, “Losses”), and threatened Losses due to, arising from or relating to any use of the Services by Customer or its vendors, agents, suppliers, employees, consultants, referred parties, and the like (“Indemnified Claim”). No settlement or compromise that imposes any liability or obligation on any Indemnified Person will be made without the Indemnified Person’s prior written consent (not to be unreasonably withheld). If Customer fails to defend an Indemnified Person as provided in this Section 7 after reasonable notice of an Indemnified Claim, Customer will be bound (i) to indemnify and reimburse the Indemnified Person for any Losses incurred by any Indemnified Person, in its sole discretion, to defend, settle or compromise the Indemnified Claim; and (ii) by the determination of facts common to an action and subsequent action to enforce the Indemnified Person’s reimbursement rights.
7.3. Each Party (the “Indemnifying Party”) shall, to the extent permitted by law, indemnify, defend and hold harmless the other Party and its respective employees, officers, directors, contractors, consultants, agents and representatives (the “Indemnified Party”) from and against any and all third party liabilities, actual or alleged claims, actions, losses and damages (collectively, a “Claim”) to the extent caused by or arising out of the gross negligence, willful misconduct, or violation of law of the Indemnifying Party or any agent of the Indemnifying Party in the course of its performance under this Agreement, including but not limited to personal injury, death, damage to property (tangible or intangible), and/or injury, sickness, or disease to persons (including death), infringement of civil rights or other tortious acts settlements, judgments, court costs, reasonable attorneys’ fees, fines, penalties and other litigation expenses. This indemnity shall apply to all Claims against the Indemnified Party made or threatened by, or in the name of or on behalf of the Indemnifying Party’s employees which arise in the course of their employment. The Indemnifying Party hereby waives any defense it may otherwise have under applicable workers compensation laws.
8.1. Governing Law. The Agreement and the relationship between Customer and Company shall be governed by the laws of the State in which the notary is commissioned without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award, Customer and Company agree to submit to the personal and exclusive jurisdiction of the courts located within the state of California and waive any objection as to venue or inconvenient forum. The failure of Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. No amendment to this Agreement shall be binding unless posted at www.notarycam.com/terms-of-service.
8.2. Any dispute or claim between Customer and Company arising out of or relating to this Agreement shall be resolved by binding arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Orange County, California and shall be conducted in English. Questions of arbitrability shall be decided by the arbitrator. The prevailing party shall be entitled to an award of reasonable attorney’s fees and costs of suit. The arbitrator’s decision shall follow the plain meaning of the relevant documents and the decision shall be in writing including the legal reasoning and factual basis for the decision. Judgment upon the arbitrator’s decision may be entered in any court of competent jurisdiction following judicial review, if any, as provided for by law. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. All claims shall be arbitrated individually, and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND OTHER PROCEDURES INHERENT IN ORDINARY CIVIL LITIGATION. MANDATORY BINDING ARBITRATION FOR NON-CALIFORNIA RESIDENTS.
10.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. No right or interest in this Agreement will be assigned by either Party without the prior written permission of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing or anything to the contrary in this Agreement, either Party may, without the other Party’s written consent, assign this Agreement in its entirety to any entity that acquires all or substantially all of such Party’s assets (other than in a bankruptcy proceeding) or a majority of such Party’s outstanding equity securities, or is the surviving entity in any merger; provided that the assignee agrees to be bound by all of the terms and conditions of this Agreement. Any attempted assignment in contravention of this provision will be void and ineffective. The assigning Party shall remain obligated for the performance of this Agreement by any Affiliate. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.